D. Apportioning damages and liability would be unworkable

1. Congress wrote the PLCAA to cover foreign claims.

Congress made clear that firearms companies operating in the United States should be

shielded from lawsuits arising from harms caused by firearms shipped overseas. The statute

provides:

Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

15 U.S.C. § 7901(a)(5) (emphasis added). Thus, Congress expressly contemplated that

companies operating in the United States should not be held liable for the misuse of their

firearms “shipped or transported in . . . foreign commerce.” Id. (emphasis added). This is exactly

the type of “clear, affirmative indication” of congressional intent that dispels any doubt about the

law’s applicability. RJR Nabisco, 136 S. Ct. at 2101.

Other aspects of the statutory text confirm the same point. The statute notes that U.S.

manufacturers must comply with, among other things, the “Arms Export Control Act,” thus

contemplating that the law should apply to firearms exported abroad. 15 U.S.C. § 7901(a)(4).

The PLCAA also notes that imposing liability on firearms companies could undermine both

“interstate and foreign commerce.” Id. § 7901(a)(5). Similarly, the statute’s explicit purposes

include avoiding “unreasonable burdens on interstate and foreign commerce.” Id. § 7901(b)(4).

And the definitions of covered “manufacturer[s],” “seller[s],” and “qualified product[s]” likewise

all contain references to “foreign commerce.” Id. § 7903(2), (4), (6).

In addition to all of these explicit references to exports and foreign commerce, the

possibility of foreign plaintiffs bringing lawsuits fully implicates Congress’s stated concern

about tort suits imposing undue burdens on “[b]usinesses in the United States” engaged in the

sale and manufacture of firearms. If anything, suits brought against U.S. companies by foreign

plaintiffs pose an even greater threat than usual because they could potentially expose U.S.

companies to the hostile tort law of foreign nations. Allowing such foreign suits would thus blow

a gaping hole in the protection that the PLCAA was designed to provide, contradicting both the

clear text and purpose of the law.

2. This case involves a domestic application of the PLCAA.

In any event, this case simply does not involve “extraterritorial” application of the

PLCAA in the first place, but rather domestic application to a suit in a U.S. court, against U.S.

companies, based on their conduct in the U.S. “If the conduct relevant to the statute’s focus

occurred in the United States, then the case involves a permissible domestic application even if

other conduct occurred abroad.” RJR Nabisco, 136 S. Ct. at 2101. The PLCAA is focused on

prohibiting covered lawsuits from being filed in U.S. courts, which Congress determined is “an

abuse of the legal system.” 15 U.S.C. § 7901(a)(6). The operative provision says that “[a]

qualified civil liability action may not be brought in any Federal or State court.” Id. § 7902.

Accordingly, the focus of the statute is preventing this type of lawsuit from being “brought” in a

“Federal or State court.” Applying the PLCAA to any such lawsuit in a U.S. state or federal court

is thus a domestic application of the statute, “even if other conduct” relevant to the lawsuit

“occurred abroad.” RJR Nabisco, 136 S. Ct. at 2101.

The point is especially clear because this case not only arises in the U.S. court system,

but also targets companies for sales and manufacturing activities in the United States. Congress

enacted the PLCAA to protect the “interstate and foreign commerce of the United States,” and to

avoid “imposing liability on [the] entire industry” of firearms sellers and manufacturers in

America. 15 U.S.C. § 7901(a)(6). Thus, because this case asks whether the U.S. firearms

“industry” should be held liable for their domestic commercial activity, that is yet another reason

why this is a domestic application of the statute that does not raise any concerns about

extraterritoriality.

Mexico appears to hang its hopes on the argument that PLCAA applies “only when the

[plaintiff’s] injury occurred in the U.S. and the criminal’s misuse of the gun was unlawful under

U.S. domestic law.” Compl. ¶ 23. Counsel for Mexico has also publicly argued elsewhere that

the PLCAA could not possibly apply in this case because it would require the Court to determine

what constitutes “criminal” misuse under Mexican law. But these arguments have no basis in the

text of the statute or common sense. First, as noted above, the statute’s clear focus is on barring

U.S. courts from being used to file suit against U.S. companies for their lawful conduct in the

U.S., regardless of where the plaintiff’s injury occurred. Second, as to forcing a U.S. court to

interpret Mexican criminal laws, there is no need for anything of the kind: The rationale for

Mexico’s suit is that drug traffickers in Mexico are unlawfully using defendants’ products in that

country to commit murder. That is clearly criminal misuse under Mexican law, which is not

disputed by the parties. Moreover, determining whether the PLCAA predicate exception applies

turns on whether defendants violated any specified “State or Federal” statute, which makes

Mexican law irrelevant. 15 U.S.C. § 7903(5)(A).

In short, because the PLCAA squarely applies here and Mexico’s claims do not fit within

any exception, this case must be dismissed at the threshold. Defendants should not be subject to

the burdens of litigation or discovery based on these claims, since those are exactly the burdens

that Congress was trying to preclude when it enacted the PLCAA. See H.R. REP. NO. 109-124, at

12 (2005) (explaining that the firearms industry should not be subject to “the cost of defending

itself against these suits.”); In re Acad., Ltd., 625 S.W.3d at 32-36 (surveying cases recognizing

that Congress meant the PLCAA to grant “immunity to firearms manufacturers and dealers from

any lawsuit, pending or otherwise, fitting the Act’s definition.”).

III. Mexico Fails to Allege Facts Showing that Defendants’ Business Practices Are the “Proximate Cause” of the Injuries Inflicted by Mexican Drug Cartels.

Even if federal law did not bar Mexico’s claims, they would fail on their own terms for

lack of proximate cause, which imposes an even tighter causation requirement than Article III

standing. In particular, the doctrine of proximate cause guards against “open-ended liability for

[the] remote effects” of a defendant’s conduct, Davis v. United States, 670 F.3d 48, 56 (1st Cir.

2012), and so require a “direct relation between the injury asserted and the injurious conduct

alleged,” Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992) (emphasis added). When a

claim “fails plausibly to allege a causal chain sufficient to ground an entitlement to relief, that

claim is susceptible to dismissal under Rule 12(b)(6)” for lack of proximate cause. Jane Doe No.

1 v. Backpage.com, LLC, 817 F.3d 12, 24 (1st Cir. 2016). Here, the complaint concedes that all

of the claims require a showing of proximate cause. See Compl. ¶¶ 509, 519, 522, 524, 532, 541,

548, 556, 559. But the facts alleged do not satisfy that requirement.

There is no question that every manufacturer of dangerous products knows that end users

may use those products unlawfully to harm others. But as the Supreme Court has held in many

different contexts, “foreseeability alone does not ensure the close connection that proximate

cause requires.” Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1306 (2017); Hemi Grp.,

LLC v. City of New York, 559 U.S. 1, 12 (2010); see also Davis, 670 F.3d at 56 (applying

Massachusetts law). This is especially true when the relevant harm results from intervening

criminal acts, because the “mere fact that misconduct on the part of another might be foreseen”

does not “place the responsibility upon the defendant.” PROSSER & KEETON ON THE LAW OF

TORTS 305 (5th ed. 1984). After all, car companies know their cars will be used for reckless

driving, knife companies know their knives will be used to hurt others, and beer companies know

that minors drink, but none of this knowledge makes those companies liable for resulting harms.

Here, proximate cause is lacking for several reasons. First, the alleged causal chain is

extraordinarily attenuated, consisting of multiple links that make the alleged injuries extremely

remote from any of defendants’ actions. Second, the links in the chain, by definition, involve

intervening criminal acts by multiple third parties, creating several layers of superseding

causation that breaks the chain of liability. Third, Mexico’s alleged injuries are wholly derivative

of third-party victims. And fourth, given the remote and diffuse harms alleged, apportioning

damages and liability here would be impossible.

A. The chain of causation is too attenuated.

The more remote the link between defendant’s conduct and the plaintiff’s injury, the

weaker the case for proximate cause. “A link that is ‘too remote,’ ‘purely contingent,’ or

‘indirec[t]’ is insufficient.” Hemi, 559 U.S. at 9; In re Neurontin Mktg. & Sales Pracs. Litig., 712

F.3d 21, 39 (1st Cir. 2013) (enough “attenuation” can “eliminate proximate cause”).

Accordingly, courts often consider the “sheer number of links” in the causal chain. Steamfitters

Loc. Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912, 930 (3d Cir. 1999).

Here, Mexico cannot establish proximate cause due to the “sheer number” of steps in its

theory of causation. Id. For the Mexican government to suffer harm:

1. Defendants had to sell firearms to independent federally licensed wholesale distributors.

2. Those distributors had to sell firearms to the separate independent federally licensed retail dealers.

3. Those federally licensed retail dealers had to sell firearms to nonlicensed straw buyers with illegal intentions.

4. Those buyers had to illegally sell those firearms to smugglers or themselves smuggle the firearms across the Mexican border (usually through a string of intermediaries).

5. Cartel members had to buy the firearms.

6. Cartel members had to use the firearms in violent attacks.

7. Those attacks had to injure people and property.

8. Mexico then had to sustain some derivative financial injury.

To put it mildly, this causal chain is simply too “long and torturous” to sustain liability.

City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415, 423 (3d Cir. 2002). The “causal

theory” here “is far more attenuated” than others that courts have “rejected” elsewhere. See

Hemi, 559 U.S. at 9.

B. Intervening intentional criminal acts break the chain of causation.

In addition to causal attenuation, intervening volitional acts are a “superseding cause”

that typically precludes any finding of proximate cause. In general, there can be no liability if

“the injury was actually brought about by a later cause of independent origin.” Exxon Co., U.S.A.

v. Sofec, Inc., 517 U.S. 830, 837 (1996). For example, “[t]he food industry puts refined sugar in

many products, making them more tasty; as a result some people eat too much (or eat the wrong

things) and suffer health problems and early death. No one supposes, however, that

. . . chocoholics can[] recover in tort from Godiva Chocolatier.” Int’l Bhd. of Teamsters, Loc. 734

Health & Welfare Tr. Fund v. Philip Morris Inc., 196 F.3d 818, 823 (7th Cir. 1999). The

consumer’s intervening, intentional decision to overindulge breaks the chain of causation.

Even more clearly, the “intervening criminal act of a third party” is a textbook

superseding cause. Copithorne v. Framingham Union Hosp., 520 N.E.2d 139, 141 (Mass. 1988).

Normally, an “actor may reasonably proceed upon the assumption that others will obey the

criminal law.” PROSSER & KEETON, supra, at 201. That is why car companies are not held liable

for reckless driving or beer companies for underage drinking. The only rare exception is when a

defendant itself directly exposes a plaintiff to the risk of immediate criminal danger. See, e.g.,

Gidwani v. Wasserman, 365 N.E.2d 827, 831 (Mass. 1977) (landlord disabling burglar alarms).

By contrast, more remote third-party crimes caused by independent intervening criminal acts of

multiple different parties plainly break the chain of liability.8

These rules shield firearms companies from liability when they manufacture and sell

firearms to federally licensed dealers, even if the firearms eventually find themselves in the

hands of other third parties who commit crimes. Simply put, the act of manufacturing and selling

firearms in a “highly regulated” environment is too “far removed from the downstream, unlawful

use of handguns” by criminals, acts that are entirely “out of [the companies’] control.” People ex

rel. Spitzer v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 194 (N.Y. App. Div. 2003). As a result,

firearms companies “may not be considered a proximate cause of” any “harm to person and

property caused directly and principally by the criminal activity of [the] intervening third

parties.” Id. at 201; see City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1136-37 (Ill.

2004) (no proximate cause because violence committed by third parties was “several times

removed from the initial sale of individual weapons”); Camden Cnty. Bd. of Chosen Freeholders

v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245, 264 (D.N.J. 2000) (same).

In this case, the lack of proximate cause is even more clear than in the numerous prior

cases rejecting claims against the firearms industry on that ground. Unlike cases in which

firearms made by U.S. companies are misused domestically against U.S. citizens, here causation

depends on a materially longer chain of unlawful acts requiring (a) straw purchasers unlawfully

buying firearms; (b) someone unlawfully smuggling the firearms into Mexico; (c) someone in

Mexico unlawfully acquiring those firearms; (d) someone in Mexico unlawfully using the

firearms; and then (e) Mexico suffering a financial injury as a result of a particular firearm

incident. No case has ever found proximate cause on facts like these.

8 See, e.g., Kemper v. Deutsche Bank AG, 911 F.3d 383, 393 (7th Cir. 2018) (emphasizing the “numerous criminal intervening acts”); Breeden v. Novartis Pharms. Corp., 646 F.3d 43, 49 (D.C. Cir. 2011) (finding “too many intervening causes”); Akins v. District of Columbia, 526 A.2d 933, 935 (D.C. 1987) (multiple “combined” intervening acts); McGhee v. Hybrid Logistics, Inc., No. 12-10771, 2014 WL 11281402, at *7 (E.D. Mich. Apr. 4, 2014), aff’d, 599 F. App’x 259 (6th Cir. 2015) (“multiple super[s]eding causes . . . break any causal chain”).

C. The Mexican government’s alleged harms are derivative of other victims.

The proximate cause requirement generally precludes liability “beyond the first step” of

injury. Holmes, 503 U.S. at 271. That is, a plaintiff cannot sue for injuries that are derivative of

“misfortunes visited upon a third person,” because it is the “third person”—the direct victim—

who is the proper plaintiff. Id. at 268. For example, when a ship slips its mooring and breaks a

bridge, the bridge’s owners can sue—but not the shipping companies that suffer indirect harm

due to the blocked waterway. See Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821, 824-25

& n.8 (2d Cir. 1968); see also Sterling Suffolk Racecourse, LLC v. Wynn Resorts, Ltd., 990 F.3d

31, 36 (1st Cir. 2021) (harm too derivative where a defendant company’s wrongful conduct

deprived a second company of a business license, costing plaintiff—a third company—the

opportunity to contract with the second company).

Multiple courts have applied this principle to bar foreign sovereigns from suing for

financial harms derivative of injury to their citizens. See, e.g., SEIU Health & Welfare Fund v.

Philip Morris Inc., 249 F.3d 1068, 1074 (D.C. Cir. 2001) (“the alleged harm arising from

payment of medical expenses by the . . . [foreign] nations is itself derivative of alleged injuries to

individual smokers”).9 This includes gun manufacturers: courts have repeatedly applied this

principle to bar suits against firearm manufacturers for derivative harms allegedly suffered by

domestic government plaintiffs, including, for example, Philadelphia, Chicago, New York, and

Miami-Dade County in Florida.10 The same should certainly hold true for Mexico.

Particularly instructive on this point is Ganim v. Smith & Wesson Corp., 780 A.2d 98

(Conn. 2001). In Ganim, a city sued firearm manufacturers and sellers for negligently making

9 See, e.g., State of São Paulo of Federative Republic of Braz. v. Am. Tobacco Co., 919 A.2d 1116, 1126 (Del. 2007) (finding lack of proximate cause, and adding that tobacco companies have “no legal duty to those Foreign Governments”); Republic of Venez. ex rel. Garrido v. Philip Morris Cos., 827 So. 2d 339, 341 (Fla. Dist. Ct. App. 2002).

10 See, e.g., City of Philadelphia, 277 F.3d at 424; City of Chicago, 821 N.E.2d at 1136; Spitzer, 761 N.Y.S.2d at 201; Penelas v. Arms Tech., Inc., 778 So. 2d 1042, 1045 (Fla. Dist. Ct. App. 2001).

and selling firearms, leading to violence that caused “injuries suffered by the residents of [the

city], its police force, emergency services, health and human services, courts, prisons and other

agencies and services.” Id. at 115. The court acknowledged that all of these injuries undoubtedly

resulted in “substantial costs” to the city government. Id. at 113. It nonetheless dismissed the

complaint, because the city’s alleged harms were “too derivative of the injuries of others.” Id. at

129-30. Such injuries, “that are wholly derivative of harm to a third party . . . are generally

deemed indirect and as a consequence too remote, as a matter of law.” Id. at 122. The

Connecticut Supreme Court recently reaffirmed the same point in Soto v. Bushmaster Firearms

International, LLC, 202 A.3d 262 (Conn. 2019), where it allowed a claim to proceed only

because the plaintiffs were not governmental entities but rather “direct victims of gun violence,”

and “no private party [was] better situated than [them] to bring the action,” id. at 291 (emphasis

added) (distinguishing Ganim on this ground).

Mexico cannot satisfy proximate cause because—as it admits—all of its alleged injuries

are derivative of direct victims of gun violence. In Estados Unidos Mexicanos v. DeCoster, 229

F.3d 332, 336 (1st Cir. 2000), the First Circuit held that the Mexican government does not have

parens patriae standing to sue based on “its interest in the general health and well-being of” its

citizens. Id. at 336. Although Mexico could “raise [such concerns] with the United States

through diplomatic channels,” the courts “are not the appropriate forum for the litigation of

Mexico’s quasi-sovereign interests” in protecting its citizenry. Id. at 342-43.

Mexico concedes that it cannot invoke parens patriae. Compl. ¶ 30. Instead, it tries to

achieve the same end by relying on its own asserted fiscal injuries, alleging that it has to “spend

vast funds on a wide range of services to fight the effects of” cartel violence. Id. ¶ 447. These

costs include “providing healthcare and medical care,” “training for military and police,”

“diminished property values” resulting from violence, and “providing care for children whose

parents were victims” of the cartels. Id. ¶ 448. But all of these harms are derivative of other

cartel victims, which means that Mexico is not the proper plaintiff.

It makes no difference that Mexico alleges “[c]osts associated with the deaths of and

substantial injuries to police and military personnel” and “armed attacks on employees of state-

owned enterprises and compensation paid to such victims.” Id. ¶ 448(d), (l). In Ganim, for

example, the injury was too remote despite the city’s allegation that it had suffered injury to “its

police force.” 780 A.2d at 115. The City of Philadelphia faced the same result when it tried to

assert claims derivative of city employees who had been shot. See City of Philadelphia v. Beretta

U.S.A., Corp., 126 F. Supp. 2d 882, 896 (E.D. Pa. 2000), aff’d, 277 F.3d 415. And in United

States v. Standard Oil Co. of California, 332 U.S. 301 (1947), the Supreme Court made clear that

the government is not a proper plaintiff to recover for tortious injuries to its employees, even

though the government “constantly sustains losses through the tortious or even criminal conduct

of persons.” Id. at 315. It distinguished the government-employee relationship, in which the

government has only a fiscal interest, from those rare and “highly personal” relationships giving

rise to third-party claims (such as the husband-wife and parent-child relationships). Id. at 313.

And it noted that government employees have every incentive and ability to sue on their own

behalf “without reference to any indemnity for the Government’s loss.” Id. at 310.

D. Apportioning damages and liability would be unworkable.

Finally, as the First Circuit has held, the court should consider two practical factors

bearing on proximate cause. First, the court should assess whether it would be feasible to

“ascertain the amount of . . . damages attributable to” each defendant, “as distinct from other,

independent, factors.” Sterling Suffolk Racecourse, 990 F.3d at 36 (citing Holmes, 503 U.S. at

269-70). And second, the court should consider the “administrability” of apportioning damages

among different victims, to ensure “the avoidance of multiple recoveries.” Id.

Here both of these factors foreclose any finding of proximate cause. On the face of the

complaint, it would be unworkable to (a) attribute fault among the parade of alleged wrongdoers,

and (b) avoid multiple recoveries among all the victims in Mexico who are potential plaintiffs.

As to the first issue, how could a particular amount of fault be attributed to the individual

defendants as distinct from the cartels, gun smugglers, straw purchasers, allegedly crooked

dealers, corrupt Mexican government officials, and all the other criminals who are more directly

responsible for gun crimes in Mexico? See, e.g., City of Philadelphia, 277 F.3d at 426 (noting

difficulty in “apportioning liability among, at minimum, the various gun manufacturers, the

distributors, the dealers, the re-sellers, and the shooter”). Other factors come into play too.

Ganim concluded that the court would have to “blink at reality” to surmount the “enormous

difficulty” of separating defendants’ conduct from “other, independent factors” leading to gun

violence, like “the “scourge of illegal drugs, poverty, illiteracy, inadequacies in the public

educational system, the birth rates of unmarried teenagers, [and] the disintegration of family

relationships.” 780 A.2d at 124.

As to the second issue, this case would also require “complicated rules apportioning

damages” between Mexico’s alleged derivative harms and numerous direct victims in Mexico.

See Holmes, 503 U.S. at 269. Municipal suits against the firearm industry present especially

“complex apportionment” problems. See City of Philadelphia, 126 F. Supp. 2d at 906. There is,

of course, the inherent risk of “double recover[y]” when a sovereign collects on behalf of its

citizens. Ganim, 780 A.2d at 126. But there is also the reality that, in suits by direct victims,

“defendants would be entitled to assert various special defenses, based on those plaintiffs’

conduct, which would not be available to the defendants” in suits brought by the government.

Id. Mexico does not explain how this problem could be surmounted.

IV. Firearms Companies Have No Legal Duty to Protect the Mexican Government from Mexican Criminals Who Misuse Firearms in Mexico.

Aside from proximate cause, the complaint must be dismissed for the related reason that

defendants do not owe any legal duty to protect Mexico from gun violence committed by

criminals within its own borders. Duty encompasses the “sum total” of “considerations of policy

which lead the law to say that the plaintiff is entitled to protection.” PROSSER & KEETON, supra,

at 358-59; see Luoni v. Berube, 729 N.E.2d 1108, 1113 (Mass. 2000). Courts determine whether

a duty exists by looking to “social values and customs” as well as “appropriate social policy.”

Yakubowicz v. Paramount Pictures Corp., 536 N.E.2d 1067, 1070 (Mass. 1989). When “the

social costs associated with liability are too high to justify its imposition, no duty will be found.”

Lodge v. Arett Sales Corp., 717 A.2d 215, 226 (Conn. 1998).

Suits like this one, brought by remotely-injured parties against manufacturers, present an

especially acute “danger that juries may overlook the nearer causes [of a plaintiff’s injury] and

wrongly attribute the injury to some antecedent neglect of the manufacturer.” Carney v. Bereault,

204 N.E.2d 448, 452 (Mass. 1965). For this reason, courts have routinely rejected claims brought

by foreign governments, similar to those here, seeking to hold U.S. tobacco companies liable for

harms stemming from their citizens’ use of tobacco. Even when companies directly “sell[] their

products to citizens of the Foreign Governments who later become injured,” the companies

“incur[] no legal duty to those Foreign Governments.” State of São Paulo, 919 A.2d at 1126.

Allowing those governments to sue would present “complex and intricate” concerns affecting the

“national economy”—concerns “better addressed by the legislature(s), not by courts applying

common law principles.” Id.11

Here, it is clear that defendants did not owe any legal duty to Mexico because they are

alleged to have done nothing more than legally sell their firearms into the stream of U.S.

11 See SEIU, 249 F.3d at 1074; Republic of Venez., 827 So. 2d at 341.

domestic commerce. Unlike the tobacco companies in the cases cited above, defendants did not

even make direct sales to consumers in the foreign country whose government is seeking to sue

them. And the fact that the plaintiff here is a foreign sovereign, not a direct victim of gun

violence in the United States, makes the lack of duty here especially clear.

On the policy side, defendants here have an even stronger argument than tobacco

manufacturers, because subjecting the firearm industry to sweeping liability from foreign

sovereigns would implicate serious Second Amendment questions. The Second Amendment

expressly protects the right to keep and bear arms, which necessarily presupposes the right to

produce and sell them to U.S. civilians. See, e.g., United States v. Marzzarella, 614 F.3d 85,

92 n.8 (3d Cir. 2010) (“regulations on the sale of firearms do not fall outside the scope of the

Second Amendment”); Ezell v. City of Chicago, 651 F.3d 684, 696 (7th Cir. 2011) (same).

The history of firearms law in the United States is a history of legislation and regulation

continually calibrated to protect Americans’ constitutional rights while also protecting people

from a potentially dangerous product; the Court should not allow that incremental evolution to be

upended by a lawsuit filed by a foreign power. Because “[s]tate power may be exercised as much

by a jury’s application of a state rule of law in a civil lawsuit as by a statute,” BMW of N. Am.,

Inc. v. Gore, 517 U.S. 559, 572 n.17 (1996), considerations of “appropriate social policy,”

Yakubowicz, 536 N.E.2d at 1070, counsel against finding a legal duty on facts like these.

V. Manufacturing and Selling Firearms Is Not a “Public Nuisance.”

Even if the PLCAA somehow did not bar public-nuisance claims, Mexico fails to state a

claim for public nuisance. Compl. ¶ 518. The overwhelming weight of authority holds that

selling and manufacturing lawful products cannot give rise to a public-nuisance claim, and this

case provides no reason to depart from that consensus.

Although various plaintiffs have tried to file public-nuisance claims “against the makers

of products that have caused harm, such as tobacco, firearms, and lead paint,” those claims have

been squarely “rejected by most courts . . . because the common law of public nuisance is an

inapt vehicle.” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR ECON. HARM § 8 cmt. G (2020). The

most recent example comes from the Supreme Court of Oklahoma, which canvassed the

common law and held that the “public nuisance” doctrine does not apply to “the manufacturing,

marketing, and selling of lawful products.” State ex rel. Hunter v. Johnson & Johnson, No.

118474, 2021 WL 5191372, at *5 (Okla. Nov. 9, 2021) (rejecting claim against prescription

opioid manufacturer). That conclusion is firmly grounded in the common law, which limits

public nuisance actions to violations of “public rights,” which must be “more than an aggregate

of private rights by a large number of injured people.” Id. at *6. As a result, plaintiffs (including

governmental entities) cannot bring a public nuisance claim based on “individual injuries

sustained from use of a lawful product.” Id.

Courts have repeatedly applied this principle to the sale and manufacturing of firearms.

For example, in City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1116 (Ill. 2004), the

Illinois Supreme Court rejected a public-nuisance claim against firearms manufacturers, holding

that there is no “public right to be free from the threat that some individuals may use an

otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in

a manner that may create a risk of harm to another.” Id. at 1116. If the rule were otherwise, then

“nuisance liability [could] be imposed on an endless list of manufacturers, distributors, and

retailers of manufactured products.” Id. After all, distributing a wide range of products “could be

said to contribute to an interference with the public right” to be “free from the threat that others

may use a lawful product to break the law.” Id. But the public-nuisance doctrine cannot

rationally extend so far.12

12 See also, e.g., City of Philadelphia, 277 F.3d at 420-22 (“[T]o extend public nuisance law to embrace the manufacture of handguns would be unprecedented nationwide for an appellate court.”); Camden Cnty. Bd. of Chosen Freeholders, 273 F.3d at 541 (same); Sturm, Ruger & Co., 761 N.Y.S.2d at 196 (refusing to give “a green light to a common-law public nuisance cause of action” against firearms manufacturers, which would sweep in “a

If there were any doubt, the First Circuit has instructed that federal courts sitting in

diversity should not adopt novel theories that would “expand[] state law,” as they are “charged

with ascertaining state law, not with reshaping it.” Katz, 672 F.3d at 73-74 (quoting Gill v.

Gulfstream Park Racing Ass’n, 399 F.3d 391, 402 (1st Cir. 2005)). Twenty years ago, a

Massachusetts state trial court allowed a public-nuisance claim against multiple firearm

manufacturers. See City of Boston v. Smith & Wesson Corp., No. 199902590, 2000 WL 1473568,

at *14 (Mass. Super. Ct. July 13, 2000). But this decision is clearly wrong, an outlier that

illustrates the point: Five years later the Massachusetts Supreme Judicial Court, joining the other

courts noted above, refused to “appl[y] a public nuisance theory to the ownership, possession, or

storage of a firearm,” holding that doctrine inapplicable where the alleged injury results from the

“use of . . . gun[s] by a third party.” Jupin v. Kask, 849 N.E.2d 829, 843-44 (Mass. 2006).

VI. Mexico Cannot Use Mexican Law to Regulate U.S. Firearms Companies.

Perhaps sensing that its claims are not viable under U.S. law, Mexico also invokes

Mexican tort law to impose liability on defendants. See Compl. ¶¶ 60-62. But even assuming

Mexican law would allow for such liability (and that the PLCAA would not bar it), this claim

fails for a different reason: Under basic principles of international comity, a foreign sovereign

cannot use foreign law to regulate the operations of U.S. companies within the United States.

That is particularly true when the foreign government is trying to use its law to impose a gun-

control policy directly at odds with U.S. law.

It is fundamental that the laws of each nation must be construed to “avoid unreasonable

interference with the sovereign authority of other nations.” F. Hoffmann-La Roche Ltd. v.

Empagran S.A., 542 U.S. 155, 164 (2004). U.S. courts thus refuse to apply foreign law when it is

“contrary to [the forum state’s] policy, or prejudicial to its interests.” Bank of Augusta v. Earle,

wide and varied array of other commercial and manufacturing enterprises and activities”); Penelas, 778 So. 2d at 1044-45 (rejecting public-nuisance claim as “an attempt to regulate firearms and ammunition through the medium of the judiciary”).

38 U.S. 519, 589 (1839). Because foreign law can be “injurious to [a state’s] citizens,” any “form

of the action” under foreign law must be “conformable to [that state’s] laws.” Pearsall v.

Dwight, 2 Mass. 84, 90 (1806). In this way, principles of comity determine “how far one country

will afford redress for . . . the commission of torts.” Story, COMMENTARIES ON THE CONFLICT OF

LAWS § 38a (6th ed. 1865).13

Comity precludes a government from “impos[ing] economic sanctions on violators of its

laws with the intent of changing [their] lawful conduct” in other jurisdictions, and from

punishing defendants for “conduct that was lawful where it occurred.” BMW of N. Am., 517 U.S.

at 572-73. For this reason, U.S. courts refuse to apply U.S. law to hold foreign companies liable

for conduct that was lawful in the country where it occurred, to avoid creating conflicts with

foreign law. See In re Vitamin C Antitrust Litig., 8 F.4th 136, 140 (2d Cir. 2021). Comity

requires extending U.S. companies the same protection. Hilton v. Guyot, 159 U.S. 113, 211

(1895) (applying principles of reciprocity in determining whether to give effect to foreign law).

Mexico invokes various theories of liability. But a “fair and serious reading of the[]

complaint,” considering the “breadth and gravity of the allegations,” Ganim v., 780 A.2d at 127,

suggests a simple motive: The Mexican government wants firearms, all firearms, out of Mexico.

Compl. ¶ 4. Taking the necessary steps—improving border security, rooting out corruption, and

adequately funding police and military, for starters—would require time, resources and the

political will to take responsibility for a massive social problem. So Mexico has opted to dry up

the “iron river of [firearms]” at its source by trying to expose U.S. firearm manufacturers to

unbounded liability through its own foreign tort law, above and beyond what U.S. law would

allow. Id. ¶ 166.

13 See, e.g., Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237-41 (11th Cir. 2004) (dismissing U.S. citizens’ claims against foreign banks for thefts perpetrated by foreign government); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 490 (D.N.J. 1999) (dismissing foreign nationals’ forced-labor claims against U.S. corporation); Telnikoff v. Matusevitch, 702 A.2d 230, 239 (Md. 1997) (declining to enforce foreign libel judgment contrary to First Amendment).

Worse, allowing foreign law to apply in this case would invite other nations to likewise

invoke their own laws to attack the U.S. firearms industry. The Court need not facilitate that

endeavor. The scope of liability the complaint suggests well exceeds what any U.S. court would

permit at common law, even under strict product liability. And such a pervasive assault on the

firearm industry would imperil civilian access to firearms—a right guaranteed by both the U.S.

and Massachusetts constitutions.

CONCLUSION

For the foregoing reasons, all of Mexico’s claims should be dismissed with prejudice.

Dated: November 22, 2021

Respectfully submitted,

Defendant, Smith & Wesson Brands, Inc., By its attorneys,

/s/ Andrew E. Lelling Andrew E. Lelling (BBO No. 631859) alelling@jonesday.com 100 High Street JONES DAY Boston, MA 02110-1781 Phone: (617) 449-6856 Fax: (617) 449-6999

and

Noel J. Francisco (admitted PHV) njfrancisco@jonesday.com Anthony J. Dick (admitted PHV) ajdick@jonesday.com JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 Phone: (202) 879-3939 Fax: (202) 626-1700

Defendant, Glock, Inc., By its attorneys,

/s/ Peter M. Durney Peter M. Durney (BBO No. 139260) pdurney@cornellgollub.com Patricia A. Hartnett (BBO No. 568206) phartnett@cornellgollub.com CORNELL & GOLLUB 88 Broad Street, Sixth Floor Boston, MA 02110 Phone: (617) 482-8100 Fax: (617) 482-3917

and

John F. Renzulli (admitted PHV) Christopher Renzulli (admitted PHV) Jeffrey Malsch (admitted PHV) RENZULLI LAW FIRM LLP One North Broadway, Suite 1005 White Plains, NY 10601 Phone: (914) 285-0700 Fax: (914) 285-1213

Defendant, Barrett Firearms Manufacturing, Inc., By its attorneys,

/s/ James W. Porter James W. Porter (admitted PHV) jwporterii@pphlaw.net Warren Kinney (admitted PHV) wkinney@pphlaw.net PORTER PORTER & HASSINGER, P.C. 880 Montclair Road Suite 175 Birmingham, Alabama 35213 Phone: (205) 322-1744

and

James M. Campbell (BBO No. 541882) jmcampbell@Campbell-trial-lawyers.com Trevor J. Keenan (BBO No. 652508) keenan@Campbell-trial-lawyers.com CAMPBELL CONROY & O’NEIL, P.C. 1 Constitution Wharf, Suite 310 Boston, MA 02129 Defendant, Beretta U.S.A. Corp., By its attorneys,

/s/ John McDonald John K. McDonald (PHV motion forthcoming) JMcDonald@cozen.com Michael de Leeuw (PHV motion forthcoming) MdeLeeuw@cozen.com Michael Savino (BBO No. 568826) MSavino@cozen.com COZEN O’CONNOR 1650 Market Street Suite 2800 Philadelphia, PA 19103 Phone: (215) 864-8046

Defendant, Sturm, Ruger & Co., Inc., By its attorneys,

/s/ Jonathan Handler Jonathan I. Handler (BBO No. 561475) jihandler@daypitney.com Keith H. Bensten (BBO No. 568780) kbensten@daypitney.com DAY PITNEY LLP One Federal Street, 29th Floor Boston, MA 02110 Phone: (617) 345-4600 Fax: (617) 345-4745

and

James Vogts (admitted PHV) jvogts@smbtrials.com SWANSON, MARTIN & BELL LLP 330 N. Wabash Suite 3300 Chicago, IL 60611 Phone: (312) 222-8517 Cell: (630) 258-3987 Defendant, Colt’s Manufacturing Company LLC, By its attorneys,

/s/ Mike Rice Mike Rice (admitted PHV) mikerice@hlawllc.com Harrison Law LLC 141 West Jackson Boulevard Suite 2055 Chicago, IL 60604 Phone: (312) 638-8776

and

John G. O’Neill (BBO No. 630272) oneill@sugarmanrogers.com Sugarman, Rogers, Barshak & Cohen, P.C. 101 Merrimac Street, 9th Floor Boston, MA 02114 Phone: (617) 227-3030

Defendant, Witmer Public Safety Group, Inc., By its attorneys,

/s/ S. Jan Hueber S. Jan Hueber (admitted PHV) hueber@litchfieldcavo.com

LITCHFIELD CAVO LLP 100 Throckmorton St., Ste. 500 Fort Worth, Texas 76102 Phone: (817) 945-8025

and

Nora R. Adukonis (BBO No. 675932) adukonis@litchfieldcavo.com

LITCHFIELD CAVO LLP 6 Kimball Lane, Suite 200 Lynnfield, MA 01940-2682 Phone: (781) 309-1500 Defendant, Century International Arms, Inc., By its attorneys,

/s/ Joseph Yannetti Joseph G. Yannetti (BBO No. 669008) jyannetti@morrisonmahoney.com MORRISON MAHONEY LLP 250 Summer Street, Boston, MA 02210 Phone: (617) 439-7585

and

Anthony Pisciotti (admitted PHV)) apisciotti@pisciotti.com Danny Lallis (admitted PHV) dlallis@pisciotti.com Ryan Erdreich (admitted PHV) rerdreich@pisciotti.com PISCIOTTI LALLIS ERDREICH 30 Columbia Turnpike, Suite 205 Florham Park, NJ 07932 Phone: (973) 245-8100